AKHTAR HASSAN, J.--This R.F.A. Arises from the judgment/decree., dated 13-2-1985, whereby Civil Judge, Sialkot, dismissed the appellant/plaintiff suit for recovery of Rs.5,15,000.
2. Allegedly, the respondents-ladies, who were living abroad, entered into an agreement, dated 10- 12-1978, to sell away their land measuring 60 kanals 9 marlas in favour of Malik Khalid Mahmood at the rate of Rs.1,20,000 per acre. The agreement was ostensibly executed in favour of Khalid Mahmood's real brother, Khalil Ahmad. In order to look after their interest and complete the sale, statingly the respondents appointed the appellant orally as their representative and agreed to pay him commission at the rate of Rs.2 per cent of the sale price. The vendee, Khalil Mahmood, took over possession of 36 kanals 5 marlas out of the entire land after evicting a tenant and even sold it onwards, but he could not get possession of the remaining area measuring 24 kanals 4 marlas as it was acquired for grain market and consequently, a dispute arose about the extension of the period for completing the sale hopingly after the acquisition was denotified. It was claimed that the respondents-ladies did not agree to such extension and instead orally sold away 19 kanals 17 marlas, equal to their share in the acquired land, to the appellant at the rate of Rs.1,50,000 per acre and even received a sum of Rs.50,000 from him as earnest money through a bank draft, dated 29- 5-1979. Khalid Mahmood as first vendee brought a suit, to defend which the appellant claimed to have spent a sum of Rs.25,000. But, in the meantime, defendant 2's husband, Zia-ul-Haq, having come from United States, collusively sold the land to Khalid Mahmood at a higher price and thereby refused not only to convey the land to the appellant but also pay him commission at the rate of Rs.2 per cent, reimburse him for the expenses to the tune of Rs.25,000 incurred by him to defending the litigation, and to refund him the earnest amount of Rs.50,000 earlier advanced to them. He prayed for Rs.40,000 as commission, 25,000 as expenses, 50,000 as earnest money and Rs.4,00.000 by way of compensation as he expected to have reaped a huge profit had the land been sold to him. Thus, his total claim came to Rs.5,15,000.
3. The respondents/defendants contested the suit pleading that it should have been one of specific performance; that it was bad for multifariousness inasmuch as many causes were jumbled up together in one suit; and that it was barred by time. They categorically denied if they had authorized the appellant as agent on any commission whatsoever to complete the sale or had agreed to sell a part of the land in his favour, or had received any earnest amount from him. They maintained that the bank draft worth Rs.50,000 represented repayment of a debt which the appellant had taken from them. They added that they had simply engaged the appellant as a lawyer in the suit and that the rest of assertions mad; by him were false. They denied if they .... In any manner, colluded wit Khalid Mahmood.
4. The following issues were framed by the trial Court:-- "(1) Whether the plaintiff has got any locus standi and cause of action to bring this suit? OPP (2)Whether the suit is barred by limitation? OPD (3)Whether the suit lacks maintainability, in its present form? OPD (4)Whether the suit is bad for misjoinder of causes of action? If So, with what affect? OPD (5)Whether the defendant agreed to pay 2% of the sale price to the plaintiff, in respect of the bargain mentioned in the plaint? OPP (6)Whether a sum of Rs.50,000 paid by the plaintiff, vide draft No.901213/908/03 related to the repayment of the loan which the plaintiff had obtained from Mst. Nasira Begum-Defendant No.1?
OPD (7)Whether the plaintiff was bound by the agreement to obtain the possession of land from one Malik Khalid Mahmood and to defend the defendant's cases? OPP (8)Whether the defendant incurred any expenses in the said connection? If so, to what extent? OPP (9)Whether the plaintiff has suffered any thing in consequence of sale of 19 kanals and 7 marlas from the suit land by the defendants, in favour of one Khalid Mahmood? If so, to what extent? OPP
(10) Whether the plaintiff is entitled to claim any damages on account of the defendant's above acts or agreement? If So, to what extent? OPP
(11) Relief.
Issues 1, 5, 6 and 7 to 10 were decided against the appellant, while issues 2 to 4 had become redundant. The suit was dismissed with costs.
5. It will have been clear that the appellant made four pronged claim for recovery of (i) expenses,
(ii) earnest amount, (iii) commission and (iv) damages to the tune of Rs.4,00,000 for loss of profit.
He made a statement before the trial Court on 12-2-1985, whereby he abandoned his claim for the commission amounting to Rs.40,000. This abandonment, indeed, suggested that, he was half-- hearted about his entire suit. On his own showing, payment of the commission was the beginning point in his dealings with the respondents whom he claimed to he his relations and physically incapable of completing the sale with Khalid Mahmood because of their residence abroad. If he, therefore, faltered in regard to what was the basic demand on his part, the rest was obviously more shaky. The claim on this count, though abandoned, reflected adversely against him even otherwise. He was a practising lawyer. His own witnesses like P.W.2 and P.W.3 proved that he was their colleague as a professional lawyer. We seriously doubt if his profession as a lawyer at all permitted him to receive commissions in such sales. Section 41 of the Legal Practitioners and Bar Councils Act 1973, provides for punishing a lawyer for professional and any other misconduct.
Although what constitutes "misconduct" is not defined, yet in the matter of SA. Pleader, Raghunathpur (Vol. 160, 1936 Indian Cases 23), it was held that a lawyer running simultaneously the business of an insurance agent was guilty of professionals misconduct. Likewise, it was observed in George Frier Grahame v. Attorney-General, Fiji (AIR 1936 Privy Council 224) that a solicitor should not have, without making full disclosure, personal interest in a transaction in which he acts for his client. Acting as a commission agent, and that too in a transaction for, which the appellant was engaged as counsel was misconduct as contemplated by3 the precedent cases.
6. Further, practically there was no evidence to prove if the respondent had agreed to pay such a commission to the appellant. His personal statement obviously was of no consequence, while Khalid Mahmood, P.W.1, conceded in the cross-examination that he never heard the respondents making any such offer. We feel that total absence of evidence to support this claim compelled 'the appellant to abandon it. He had no choice, but the abandonment could not save him from the adverse repercussions stemming from the record.
7. Next comes the clam of reimbursement for expenses to the tune of Rs.25,000. It is equally a large amount and ordinarily should have been borne out by some vouchers etc. Right to recover it had to be based upon some agreement, but none of the P.Ws. Examined by him proved existence thereof. This was yet another oral arrangement without any writing and, therefore, it speaks for itself. What amount he spent, and on what count, needed something more than mere words of mouth. Khawaja lqba1, Advocate, P.W.2, and Muhammad Ashraf, Advocate, P.W.3, no doubt, disclosed that they had been paid fees by the appellant for their professional services on behalf of the respondents in litigation brought against them by Khalid Mahmood but they did not mention the precise amount charged by them as professional fees. They may have been engaged on behalf of the respondents through the appellant, as he was their relation, but that would not necessarily mean that even their fees were paid by latter on credit basis. Opposite version was that he too was engaged as counsel and it is rare that one c6unsel while engaging others with himself would pay from his own pocket. And per chance if he does so, he should maintain some reliable documentary evidence. This is where he failed and should not have rested content on his personal deposition. The trial Court rightly refused him this claim.
8. The third claim namely, for refund of the earnest amount of Rs.50,000 was no better. The respondents conceded having received this amount but added that it was repayment of their loan, which the appellant had earlier taken from them. The appellant's own explanation was that he loaned this amount from his own `Bhanji' living in London. It revealed that he had no personal resources to advance such a huge amount and had to beg or borrow; and if he borrowed from his own `Bhanji', there should have been some evidence to prove the same. He did not examine her, nor did he care to produce any secondary evidence to show that he had received this amount from her through any formal channel. His own testimony obviously did not suffice. Since the indication was that he lacked resources as he had to request his `Bhanji', the probability was that he had obtained this amount earlier from the respondents on credit. This impression was further supported by the fact that the respondents were his close relations, and all the more when he was acting as counsel for them in the litigation. Khurshid Alam, Advocate, P.W.4, while touching upon this payment simply relied upon the information conveyed to him by the appellant himself. He did not see the deal himself and his derivative knowledge partook the shape of a hearsay. Malik Mumtaz Hussain, Advocate, P.W.5, did not make even a passing allusion to this payment or any other material aspect of the case. This is-how the evidence on the record did not adequately establish this demand on the part of the appellant. We uphold the finding of the trial Court on this count too.
9. Last but not least was the appellant's demand for Rs.4,00,000 as loss of profits owing to the respondents' refused to abide by the oral agreement to sell 19 kanals 7 marlas of land corresponding to their share in the land acquired for `Ghalla Mandi'. None of his P.Ws supported him and if any of them made a little reference to it, it was based upon hearsay. The absence of arty writing was C inexplicable. Since he was engaged by the respondents as counsel the probability was that he misused his fiduciary relationship with them to assert such a claim on the strength of a mere oral agreement. He examined 3-.4 lawyers as his witnesses but none of them had any original knowledge about it. The respondents were shown to be living in the United States and as such, may be quite affluent. The appellant may have been prompted to make out some thing from them by the present pestering process of litigation.
10. We see no reason to differ with the findings of the trial Court and D dismiss the appeal with costs throughout.
M.Y.H./B-116/L